S. P. KOHLI, CIVIL SURGEON, FEROZEPUR versus HIGH COURT OF PUNJAB & HARY ANA

Citation: [1979] 1 S.C.R. 722 · Decided: 12-09-1978 · Supreme Court of India · Bench: JASWANT SINGH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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722 
S. P. KOHLI, CIVIL SURGEON, FEROZEPUR 
v. 
HIGH COURT OF PUNJAB & HARY ANA 
September 12, 1978 
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.J 
Offences against Public Justice-False evidence, Section 193 of the Penal Code 
-Process, issue of, Section 204 Crl. P.C., explained. 
In connection with the offences under Sections 302 and 376, medicnl opinion 
was sought by the Police as to ( 1) the nature of injuries on the person of the 
accused. (2) the accused's potency to perform the sexual intercourse and (3) 
Whether the accused had performed sexual intercourse during the la.5t 24·48 
hours, from one Dr. P. K. Mittal, Medical Officer, Nehru Municipal H08J>ital, 
Abohar. As according to the Government instructions in force at the relevant 
time, medico-legal cases were to be examined by two doctors, Dr. P. K. Mittal 
examined the accused in the presence of Dr. Mrs. L. K. Grewal attached to the 
!;ame hospital. 
On examination of the private parts of the accused, the doctor~ 
observed tbC. whole of the glans penis and corona of the accused covered with 
a thick layer of yellowjsh material which smelt like smegma. They therefore 
advised a thorough chemical and microscopic examination of the yellowish mat(-
rial to find out if it was a layer of smegma or not -to enable them to answ(r 
third query of the police and referred to the accused to the appellant who \Va~ 
posted as Chief Medical Officer, Ferozepur. The doctors in their fOrwarding 
letter stated that they had not at all disturbed the layer so that the appelJant 
"\vould examine the case in its original condition and order the sample 
of 
smegma to be· taken and sent for chemical examination if he felt like doing so''. 
The accused could be taken to Ferozepur by the police only two day~ later. ()n 
going through the letter, the appe11ant wrote back saying 
that 
no 
~pecial 
opinion by him was necessary and that Dr. Mittal himself could take the scrtip-
ping of the yellowish material and send the san1e to the chemical examiner 
Punjab for opinion. The chemical examiner Punjab, as well as the Pr-ofes~or 
of Pathology, Medical College, PatiaJa, whose opinion was sought expres·sed 
their inability to carry out any test for smegma as they had no arrangement 
for the same. The accused was convicted and sentenced to death under s. 302 
l.P.C. subject to confirmation of the High Court and to imprisomµent for life 
under s. 376 LP.C. 
The accused in his appeal claimed benefit of doubt con· 
tending that the appellant as well as the other two doctors failed to examine 
the glans penis of the accused with a View to find out whether there were any 
injuries thereon or not. On this argument being raise<l, the leiiri1ed Judges 
constituting the Division Bench felt that it was necessary in the 
interest of 
justice to examine the appellant as a court witness. 
They, therefore summoned 
the appellant as a court witness and recorded his statement. At the concln~ 
sion of the examination of the appellant, tho learned Judges felt that the appel· 
Jant had intentionally made a false statement with a view to shield his 
own 
guilt and to he1p the accused. 
They accordingly ordered the prosecution c·f the 
appellant under s. 193 l.P.C. 
Allowing the appeal by special leave the Court. 
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s. P. KOHLI v. H. c. PUNJ. &,HAR. (Jaswant Singh,!.) 
723 
HElD : (I) What 'the courts have to see before issuing the proe<ss against 
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the accuaed i!I whether there is evidence in support" of the allegation& made by 
the complainant to justify tho initiation of proceedings 
against the accused 
and not whether the evidenco is sufficient to warrant his conviction, but this 
~°"" not mean that the Courts should not prima facie be of the opinion that 
there are sufficient and reasonable grounds for setting the machinery of crimi-
nal law in motion against the accused. The moment, this guiding principle is 
overlooked, the prosecution degenerates itself into prosecution 'vhich often is 
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fraught with evil consequences. In the instant case, the language in which the 
obset"vations of the High Court about the exercise of pressure by the appellant 
on Dr. Mn. L. K. Grewal are couched. shows that the High Court was 
itself 
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not prinu1 facie saitisfied about the validity of the action that it was takine-. 
[732D-FJ 
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(2) Prosecution for perjury should be1 sanctioned by courts only 
in those 
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cases where it appears to be deliberate and conscious and 
the co

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